If at or prior to a hearing on a petition alleging a person to be an incapacitated or partially incapacitated person, or if at any point in the course of a proceeding pursuant to said petition, the subject of the proceeding is not represented by counsel, the court may appoint an attorney as provided in this section, and the court may at any time subsequent to the filing of said petition appoint a guardian ad litem to assist the court in making a determination as to whether or not an attorney should be appointed for the subject of the proceeding.
A guardianship proceeding poses the risk to the prospective ward of a massive curtailment of liberty as well as of the infliction of adverse social consequences. The ward must submit his person, estate, and business affairs to the control of the guardian. The ward’s freedom to choose his place of residence, to travel, and to carry on relationships with others is limited or terminated. Numerous statutory disabilities are placed upon a ward, including the loss of the right to remain licensed to practice a profession, to marry, to own or possess firearms, to operate a motor vehicle, to serve as a juror, and to remain registered to vote. Towne v. Hubbard, 3 P.3d 154, 159 (2000). The right to counsel is not a formality. It is not a grudging gesture to a ritualistic requirement. It is of the essence of justice. Id at 163.
A. An individual who is alleged to be or found to be an incapacitated or partially incapacitated person shall have a right to: 1. notice as provided in Section 3-110 of this title; 2. be present at such hearings; 3. compel the attendance of witnesses; 4. present evidence; 5. cross-examine witnesses; 6. appeal adverse orders and judgments as provided by the rules of civil procedure; 7. representation by court-appointed counsel upon request; and 8. request that the proceedings be closed to the public. B. The requirement of notice to the subject of the proceeding shall not be waived. B. The requirement that the subject of the proceeding be present at a hearing may be waived only for good cause shown. Ok. Stat. § 3-106. B. If after a full hearing and examination upon such petition, the court finds by clear and convincing evidence that the subject of the proceeding is an incapacitated or partially incapacitated person, the court shall appoint a guardian or limited guardian and shall issue an order appointing a guardian. The court shall explain on the record the facts and reasons supporting the decision not to impose any less restrictive alternatives. See Okla. Stat. 30 § 3-111.
- Okla Stat. tit. 30 1-101: http://www.oklegislature.gov/osstatuestitle.html
- (Oklahoma only makes their statutes available in word document format. This link will take users to a list where they can select the appropriate section.)
- Okla. Stat. 30 §3-106(A)(7), 107(A), 107(F)(2): http://www.oklegislature.gov/osstatuestitle.html
- Okla. Prof. Conduct Rule 1.14: http://www.law.cornell.edu/ethics/ok/code/OK_CODE.HTM#Rule_1.14
- Towne v. Hubbard, 3 P.3d 154, 159 (2000): http://www.leagle.com/decision/20001573P3d154_1157.xml/TOWNE%20v.%20HUBBARD